State v. Poucher
| Decision Date | 03 February 1903 |
| Citation | 71 S.W. 1125,98 Mo. App. 109 |
| Parties | STATE ex rel. KUHLMAN v. POUCHER. |
| Court | Missouri Court of Appeals |
1. Article 2, § 5, of a city charter, provided that the council might appoint a clerk and such other officers, etc., as they should deem necessary. Article 4, § 6, provided that the mayor should have power to nominate, and, with the council's consent, appoint, all city officers not ordered to be otherwise appointed. Section 9 enacted that there should be a clerk of the city council, who should perform the duties of register, and such other duties as the council should direct, and there should be such other officers, etc., as might be provided by ordinance, to be appointed by the mayor, with the council's consent. Held, that the clerk provided for by article 2, § 5, and the one authorized by article 4, § 9, were the same officer, who was to be appointed by the council alone.
Error to circuit court, Pike county; David H. Eby, Judge.
Quo warranto by the state, on the relation of Henry Kuhlman, against Harry Poucher. Judgment for relator, and respondent brings error. Affirmed.
Jas. W. Reynolds, for plaintiff in error. Robt. A. May, for defendant in error.
The city of Louisiana, in Pike county, Mo., was incorporated by an act of the legislature passed in 1870. In March, 1900, plaintiff in error was nominated by the mayor of the city to be clerk of the city council, and his appointment was duly confirmed by the council. In March, 1901, a new council was elected, and the mayor again nominated plaintiff in error to be clerk of the city council; but the council refused to approve the nomination, and on April 1, 1901, passed an ordinance (No. 1647), the first section of which reads as follows: "That Henry Kuhlman be and he is hereby appointed clerk of the city council for a term of one year and until his successor is duly appointed and qualified." The ordinance was duly approved by the mayor on the day of its passage. After its passage, Henry Kuhlman, defendant in error, qualified by giving bond and taking the oath of office, and then demanded of Harry Poucher, plaintiff in error, the books and papers pertaining to the office. The latter refused to give up the books and papers of the office or to surrender the office to Kuhlman, whereupon John W. Jump, prosecuting attorney of Pike county, at the relation of Kuhlman, commenced proceedings by quo warranto to oust Poucher from the office of clerk of the city council. The issues were made up by the alternative writ and return thereto. The parties appeared in the circuit court of Pike county, and a hearing was had, which resulted in a judgment of ouster against Poucher. He took the necessary steps to preserve his exceptions, and sued out a writ of error from this court, and the case is here on a return to that writ.
The correctness of the judgment of the circuit court depends upon the construction of section 5, art. 2, and of sections 6, 9, art. 4, of the city charter.
Section 5, art. 2, is as follows.
"The council may appoint a clerk, and such other officers, servants and agents as they shall deem necessary in the transaction of their business." Laws 1870, p. 389.
Sections 6, 9, art. 4, are as follows:
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